Brewer asks court to dismiss AHCCCS expansion challenge

PHOENIX — Gov. Jan Brewer asked a judge on Wednesday to throw out a legal challenge to Medicaid expansion, which she said was filed by “disgruntled legislators” who were not able to kill it any other way.

The legal papers filed by her attorneys contend the 36 lawmakers, all members of her own Republican Party, lack the necessary legal standing to claim the measure imposes a tax hike.

Raising taxes, under a state constitutional provision, requires a two-thirds vote of both the House and Senate for approval; the levy passed by simple majority.

Brewer is arguing that a simple majority of lawmakers are entitled to determine if the requirement for a two-thirds vote applies. And since the majority decided it did not — and that decision is a political process — she contends the lawmakers who were on the losing end of that vote cannot now sue.

“Plaintiffs lost the political battle ... and now ask this court to grant them the outcome they failed to win through the political process,” wrote Douglas Northup, the lead attorney for the governor. He also noted a referendum drive to put the expansion plan onto the ballot, supported by many of the expansion foes, failed to get enough signatures.

The governor, in her legal pleadings, sidesteps the question of whether the assessment on the hospitals included in her plan is a tax and subject to the two-thirds vote requirement. Instead, Brewer contends the only entities that have a right to sue are the hospitals being assessed.

That, however, is virtually certain never to happen.

Before the legislative vote, Brewer got the hospitals themselves to agree to the levy. That was based on projections from the Arizona Health Care Cost Containment System, the state’s Medicaid program, that every hospital chain in the state affected by the levy would actually make money.

AHCCCS estimates hospitals will shell out $75 million for the first six months of 2014. But the agency contends they will get back that much, plus $108 million over the same period.

The bottom line message to hospitals was expanding Medicaid means more people with health insurance, which means fewer patients showing up at their doors without the ability to pay.

And AHCCCS Director Tom Betlach even crafted the levy in a way to exempt certain hospitals.

In their suit filed last month, the 36 Republicans also charged the expansion plan illegally gave Betlach the legislative power to decide whom to tax and how much.

But Brewer responded that any “injury” to those unhappy with granting that power to Betlach was caused not by some outside force “but by their colleagues in the Legislature who disagreed with them.”

If the legal arguments are not enough, Brewer is telling Maricopa County Superior Court Judge Katherine Cooper there are other reasons she should not give challengers the chance to kill the Medicaid expansion.

She said the measure, once implemented, will “provide hundreds of thousands with health care.” That is based on two factors.

First, eligibility for free care will increase on Jan. 1 to the equivalent of 136 percent of the federal poverty level. AHCCCS has until now been limited to those below the poverty level, about $19,530 a year for a family of three.

Second, it provides money to once again start enrolling single adults living in poverty. Lawmakers, at the governor’s behest, stopped signing up otherwise-eligible single adults in 2010 to help balance the state budget.

Brewer said the measure also protects rural hospitals from closing and combats “uncompensated care” provided by hospitals — care she said results in a “hidden health-care tax” in the form of higher charges to individuals and insurance companies who can pay.